IN THE CASE OF:	

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140003117 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his record to remove from his Official Military Personnel File (OMPF) the nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) and the General Officer Memorandum of Reprimand (GOMOR), dated 28 October 2013, as well as any other adverse documents placed in his OMPF as a result of this NJP.

2.  He also requests reimbursement of all monies forfeited as a result of the NJP.

3.  The applicant states the offenses he was punished for in the NJP were beyond the 2-year statute of limitations; therefore, in accordance with Article 43 of the UCMJ, the NJP, GOMOR, and all allied documents should be permanently removed from his records and all monies forfeited as a result of his punishment should be returned.

	a.  The offenses listed in the Article 15, dated 28 October 2013, covered a range ending in 14 October 2011.  This date is based on First Lieutenant (1LT) KEH's removal from theater for mental health reasons.  

	b.  He included a redacted copy of 1LT KEH's medical records.  Her medical records were disclosed to him in the course of the investigation.  He has taken great care to only show her inpatient status and movement out of theater, blacking out any other Personally Identifiable Information (PII).  

	c.  On 16 October 2013, his commander informed him he was considering UCMJ under the provisions of Article 15 and read the charges.  However, this reading occurred 2 years and 2 days from the alleged commission of the latest offense that resulted in the initiation of proceedings.  17 October 2011 was the last day in 2011 1LT KEH and the applicant were on the same continent. 

	d.  The proceedings themselves occurred on 24 October 2013 and the punishment was also imposed on this date.  This is 2 years and 10 days after the latest alleged commission of an offense.  This is over 2 years and 1 week after 1LT KEH was actually removed from theater.  The Article 15 is defective on its face because Article 43 of the UCMJ plainly states no punishment may be imposed under Article 15 if the offense was committed more than 2 years before the imposition of punishment.  

4.  The applicant provides:

* four pages of 1LT KEH’s medical records (Standard Form (SF) 600 (Chronological Record of Medical Care))
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) first page only, dated 28 October 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant provided four pages of 1LT KEH’s SFs 600.  These SFs 600 are the medical records of another Soldier, and are protected under the Health Insurance Portability and Accountability Act (HIPPA).  The applicant was provided these documents during the course of an investigation because he was entitled to see any evidence relating to the allegations against him and he was authorized to use these documents as evidence in his own defense during any proceedings which could have resulted in punitive or criminal charges or conviction.  However, the ABCMR is neither a court of law nor an investigative agency, and does not include the personnel or medical records of other Soldiers in an applicant's case without that Soldier's express written permission.  The applicant has not provided a notarized letter from 1LT KEH stating she authorized the applicant to use or release her medical records to the ABCMR.  Therefore, these documents will not be used, included, or discussed further in this record of proceedings.

2.  The applicant was appointed as a Reserve commissioned officer on 19 July 1998.  He served in the Minnesota Army National Guard (MNARNG) and attained the rank/grade of Captain (CPT)/O-3.

3.  His records show he entered active duty on 24 May 2011 and served in Kuwait from 16 July 2011 to 1 July 2012.
4.  His record contains a DD Form 458 (Charge Sheet), dated 2 October 2012, showing he was referred for trial to a general court-martial (GCM) for the following charges and specifications which include the following:

	a.  Charge I, Violation of the UCMJ, Article 120 (Rape and sexual assault generally):

		(1)  Specification 1:  In that the applicant, did at or near Camp Arifjan, Kuwait, between on or about 13 October 2011 and 15 October 2011, cause 1LT KEH to engage in a sexual act, to wit: sexual intercourse by using physical violence, to wit: by grabbing her by the back of her uniform, pushing her head against the floor, and forcing his penis into her vagina, sufficient that she could not avoid or escape the sexual contact.

		(2)  In that the applicant, did at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and 15 October 2011 on divers occasions wrongfully engage in sexual contact with 1LT KEH, to wit: placing his hands under her clothing and touching her breasts and vagina, and such sexual contact was without legal justification or lawful authorization and without the permission of 1LT KEH.

	b.  Charge II, Violation of the UCMJ, Article 93 (Cruelty and maltreatment), in that the applicant, did at or near Camp Arifjan, Kuwait, between on or about 
17 July 2011 and 15 October 2011 on divers occasions maltreat 1LT KEH, a person subject to his orders, by engaging in sexually harassing conduct towards 1LT KEF around Camp Arifjan by telling 1LT KEH that he would get her alone and have sexual intercourse with her, or words to that effect; and by placing his hands under her clothing and touching her breasts and vagina without her consent.

	c.  Charge III, Violation of UCMJ, Article 134 (Communicating a threat) in that the applicant, did at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and 15 October 2011 wrongfully communicate to 1LT KEH a threat to injure 1LT KEH by stating that her would sexually assault her by locking her in a transient tent where he would have sexual intercourse with her, or words to that effect; such conduct being of a nature to bring discredit upon the Armed Forces.

	d.  Charge IV, Violation of the UCMJ, Article 133 (Conduct unbecoming an officer and gentleman):

		(1) Specification 1:  In that the applicant did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and 15 October 2011 wrongfully request sexual intercourse from 1LT KEH, a subordinate under his supervision, such conduct being unbecoming of an officer and a gentleman.

		(2)  Specification 2:  In that the applicant, a married man did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and 15 October 2011 wrongfully pursue an inappropriate relationship with 1LT KEH, such conduct being unbecoming of an officer and a gentleman.

		(3)  Specification 3:  In that the applicant did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and 15 October 2011 harass 1LT KEH by following 1LT KEH around Camp Arifjan, and by telling her he would find a place where he would get her alone so he could have sexual intercourse with her, or words to that effect, such conduct being unbecoming of an officer and a gentleman.

		(4)  Specification 4:  In that the applicant did, at or near Camp Arifjan, Kuwait, on or about 19 March 2012 wrongfully and dishonorably seek to obtain the assistance of Sergeant First Class (SFC) SZ to circumvent 1LT KEH’s privacy settings in order to view 1LT KEH’s Facebook.com social networking website, such conduct being unbecoming of an officer and a gentleman.

5.  His record contains a document entitled Article 32 Investigation, United States versus the Applicant, dated 18 October 2012. 

6.  His record contains a memorandum, dated 24 October 2012, he sent to the U.S. Army Human Resources Command, requesting he be permitted to resign for the good of the service in lieu of GCM.  He stated he did not desire to appear before a court-martial or board of officers.  He had not been subject to coercion with respect to his resignation, and had been advised of, and fully understood the implications of, this action.  He also stated he was explicitly conditioning his request upon his receipt of a character of service no less favorable than under honorable conditions (general).  In addition to this request, he also provided a personal statement wherein he stated:

	a.  His decision to involve himself with 1LT KEH led to pain for his wife, family, the Army, and himself.

	b.  Trying to restart a relationship with a subordinate down range was wrong and he has admitted to all the things he did which were wrong.

	c.  He never should have cheated on his wife in 2010.  His loathsome actions and poor decisions opened the door to this entire situation.  

7.  Although the applicant’s commander and intermediate commanders recommended his resignation be accepted in lieu of GCM, on 4 December 2012 the senior commander in his chain of command, Lieutenant General (LTG) VKB, stated that having reviewed the applicant’s request for resignation in lieu of GCM and considering the charges preferred against the applicant and all the supporting documents, he recommended the applicant’s request for resignation be disapproved.

8.  His record contains a memorandum, dated 18 June 2013, which shows the Department of the Army Ad Hoc Review Board reviewed the applicant’s resignation for the good of the service in lieu of GCM.  However, the Deputy Assistant Secretary of the Army (Review Boards) (DASA) did not accept this resignation and directed his case be returned to the GCM convening authority for action as he deemed appropriate.  

9.  His record contains a DA Form 2627 which shows:

	a.  On 16 October 2013, LTG JLT informed the applicant he was considering whether he should be punished under Article 15, UCMJ for the following misconduct:

		(1)  The applicant violated Article 93 of the UCMJ, in that he did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and on or about 14 October 2011, on divers occasions maltreat 1LT KEH, a person subject to his orders, by engaging in sexually harassing conduct towards 1LT KEH by staying in contact with 1LT KEH around Camp Arifjan, and telling 1LT KEH that he would get her alone to have sexual intercourse with her or words to that effect.  This is in violation of Article 93, UCMJ.

		(2)  The applicant violated Article 133 of the UCMJ, in that he did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and on or about 14 October 2011 wrongfully request sexual intercourse from 1LT KEH, a subordinate under his supervision, such conduct being unbecoming of an officer and a gentleman.  

		(3)  The applicant violated Article 133 of the UCMJ, in that he did, at or near Camp Arifjan, Kuwait, between on or about 17 July 2011 and on or about 14 October 2011 wrongfully pursue an inappropriate relationship with 1LT KEH, such conduct being unbecoming of an officer and a gentleman.  

		(4)  The applicant violated Article 133 of the UCMJ, in that he did, at or near Camp Arifjan, Kuwait, between on or about between on or about 17 July 2011 and on or about 14 October 2011 sexually harass 1LT KEH by telling her he would find a place where the two of them could be alone so that the applicant could have sexual intercourse with her or words to that effect, such conduct being unbecoming of an officer and a gentleman.  

	b.  On 24 October 2013, the applicant indicated he did not demand a trial by GCM, requested an open hearing, did not request a person to speak in his behalf, and indicated that matters in defense, extenuation, and/or mitigation would be presented in person.

	c.  LTG JLT, in a closed hearing, having considered all matters presented, which included a U.S. Army Criminal Investigation Command (CID) report, determined the applicant was guilty of all specifications and directed the Article 15 be filed in the performance section of the applicant’s OMPF.  

	d.  The applicant’s punishment included forfeiture of $3,120.00 pay for 2 months, restriction to the limits of the company area, physical training, duty, commissary, post exchange facilities, dining/medical facility, and place of worship for 30 days and a written reprimand.

	e.  The applicant was advised of his right to appeal to the Office of The Judge Advocate General (OTJAG), the next superior authority, within 5 calendar days, and advised that an appeal made after that date may be rejected as untimely.  

	f.  On 28 October 2013, the applicant indicated he would not appeal the NJP. Furthermore, he accepted the NJP rather than demanding a trial by court-martial.

10.  His record contains a punitive GOMOR, dated 28 October 2013, wherein LTG JLT reprimanded him for his conduct pertaining to a female officer.  Specifically, he maltreated a female subordinate officer under his supervision by engaging in sexually harassing conduct towards her.  Additionally, he requested sexual intercourse with this female subordinate officer and wrongfully pursued an inappropriate relationship with her.  His actions constitute violations of Article 93, cruelty and maltreatment, and Article 133, conduct unbecoming an officer and a gentleman.  Moreover, his behavior undermined his supervisor authority and demonstrated a lack of moral integrity.  

11.  His DD Form 214 shows he was honorably released from active duty on 20 December 2013.

12.  Army Regulation 27-10 (Military Justice), paragraph 3-3 states that NJP is imposed to correct misconduct in violation of the UCMJ.  Commanding officers have authority to give admonitions or reprimands either as an administrative measure or as nonjudicial punishment.  Admonitions and reprimands imposed as punishment under UCMJ, Article 15, whether administered orally or in writing should state clearly that they were imposed as punishment under that article.

	a.  Paragraph 3–12 states that NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.  Computation of this 2-year limitation is in accordance with the UCMJ, Articles 43(c) and (d).  The period of limitations does not run when the Soldier concerned is absent without authority; fleeing from justice; outside the territory where the United States has authority to apprehend; in the custody of civil authorities; or, in the hands of the enemy.

	b.  Paragraph 3–18 states the imposing commander will ensure that the Soldier is notified of the commander’s intention to dispose of the matter under the provisions of UCMJ, Article 15.  The Soldier will also be notified of the maximum punishment that the commander could impose under UCMJ, Article 15.  The Soldier will be provided a copy of DA Form 2627 with items 1 (charges) and 2 (statements of rights) completed, including the date and signature of the imposing commander and any supporting documents and statements for use during the proceedings.  The Soldier will be informed of his or her right to remain silent, right to counsel, right to demand a trial by court-martial, the right to present their case before the imposing commander, the right to call witnesses, the right to an open hearing, the right to present and examine evidence, and the right to a decision period.  Normally 48 hours is a reasonable decision period.  If the Soldier does not demand trial by court-martial prior to expiration of the decision period, including any extension of time, the imposing commander may continue the proceedings.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The Soldier has the right to appeal and the appellate rights and procedures that are available to the Soldier will be explained.

	c.  Paragraph 3–29 states that only one appeal is permissible under UCMJ, Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander’s sound discretion for good cause shown, determines it to be timely. If at the time of imposition of punishment the Soldier indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal even though it is made within the 5-day period.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that on 24 October 2013 the applicant accepted NJP under the provisions of Article 15 of the UCMJ for offenses he committed between on or around 17 July 2011 and on or about 14 October 2011. 

2.  He now argues that the Article 15 and GOMOR, dated 28 October 2013 and any other adverse documents placed in his OMPF should be removed and he should be reimbursed all monies forfeited as a result of the NJP because the offenses he was punished for exceeded the 2 year statute of limitations imposed by Article 43 of the UCMJ and Army Regulation 27-10.  

3.  It is presumed that what with court-martial charges being preferred against him and his submitting a request for resignation for the good of the service in lieu of court-martial that the applicant was represented by counsel.

4.  He did not demand a trial by court-martial.  Instead he accepted the NJP on 
28 October 2013, after being made fully aware of his rights.  Additionally, he was advised of his right to appeal his NJP with OTJAG within 5 calendar days, and was advised that an appeal made after that date may be rejected as untimely.  

5.  He was given 5 days to appeal the NJP and chose not to do so; furthermore, he elected in writing not to appeal the punishment.  This action shows that he waived the 2-year statute of limitations.

6.  Based on the foregoing, there is insufficient evidence to grant the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140003117



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ABCMR Record of Proceedings (cont)                                         AR20140003117



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